Com. v. T.L. (memorandum)

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J-S27043-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. T.L. Appellant No. 1835 WDA 2013 Appeal from the Dispositional Order entered December 20, 2013 In the Court of Common Pleas of Clearfield County Criminal Division at No: CP-17-JV-0000080-2013 BEFORE: GANTMAN, P.J., ALLEN, and STABILE, JJ. MEMORANDUM BY STABILE, J.: FILED JULY 14, 2014 Appellant T.L. appeals from the dispositional order entered by the of delinquency based on charges of involuntary deviate sexual intercourse and indecent assault.1 Appellant challenges the sufficiency and the weight of the evidence supporting his adjudication. Upon review, we affirm. ____________________________________________ 1 appealable order is not the adjudication of delinquency (the equivalent of a finding of guilt in criminal matters), but rather is the dispositional order (the equivalent of the judgment of sentence In re J.D., 798 A.2d 210, 211 n.1 (Pa. Super. 2002) (citation omitted). We have corrected the caption accordingly. There is, however, another problem with this appeal. Appellant appealed on November 18, 2013, from the adjudication order entered October 22, 2013. The dispositional order was entered December 20, 2013. Thus, (Footnote Continued Next Page) J-S27043-14 occurred in DuBois, Pennsylvania, in August 2012, and that involved B.R. At the time of the incident, Appellant was 16 whereas B.R. was 12. On that at night, while the others were sleeping, Appellant and B.R. engaged in a conversation, which eventually turned to discussing their sexual experiences. Appellant asked B.R. whether he would like him to perform oral sex on him. Eventually, B.R. accepted the offer. Appellant approached B.R. and performed oral sex on him while he sat in the chair. Appellant then asked B.R. whether he would perform oral sex on him. B.R. refused and they both went to bed. B.R. told his sister and other friends in school about the incident. After receiving a report from a school resource officer, the police started an (Footnote Continued) _______________________ [f]acially, the order from which this appeal is taken is interlocutory and unreviewable. However, following the filing of [T.L provide that if appeal is prematurely filed from an interlocutory order, the appeal is perfected when a final, appealable order is subsequently entered. See Pa.R.A.P. 905(a)(5 appeal filed after the announcement of a determination but before the entry of an appealable order shall be treated as filed Commonwealth v. Hamaker, [] 541 A.2d 1141, 1142 n.4 (Pa Super. 1988). Therefore, although [T.L.] improperly filed this appeal from the order of adjudication, appellate jurisdiction has been perfected, and so we may proceed to review this matter. In re N.W., 6 A.3d 1020, 1021 n.1 (Pa. Super. 2010). -2- J-S27043-14 investigation into the matter. The investigation included also an interview with Appellant, who denied the incident. aunt, and two other individuals testified Appellant was in Butler, Pennsylvania, not in DuBois, most of the summer of 2012, and when he returned to DuBois (second half of August 2012), he was grounded and unable to leave his residence. any wrongdoing. Appellant denied knowing B.R. and denied The Commonwealth presented the testimony of B.R., summarized above. At the conclusion of the hearing, the trial court adjudicated Appellant delinquent on the charges of involuntary deviate sexual intercourse and indecent assault. Following a dispositional hearing, the trial court ordered, inter alia, Appellant be placed on probation for a period of two years, for each delinquent act, to run concurrently. Appellant raises the following issues for our review: The Commonwealth failed to present sufficient evidence at the reasonable doubt that [] Appellant committed any of the alleged crimes, and the adjudication of [] Appellant was therefore against the weight and sufficiency of the evidence presented at the [j]uvenile hearing and an abuse of discretion by the presiding judge. -3- J-S27043-14 2 In addressing a challenge to the sufficiency of the evidence supporting an adjudication of delinquency, our standard of review is as follows: When a juvenile is charged with an act that would constitute a crime if committed by an adult, the Commonwealth must establish the elements of the crime by proof beyond a reasonable doubt. When considering a challenge to the sufficiency of the evidence following an adjudication of delinquency, we must review the entire record and view the evidence in the light most favorable to the Commonwealth. In determining whether the Commonwealth presented sufficient evidence to meet its burden of proof, the test to be applied is whether, viewing the evidence in the light most favorable to the Commonwealth, and drawing all reasonable inferences therefrom, there is sufficient evidence to find every element of the crime charged. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by wholly circumstantial evidence. The facts and circumstances established by the Commonwealth innocence. Questions of doubt are for the hearing judge, unless ____________________________________________ 2 We note Appellant generally alleged there was insufficient evidence to support the adjudication, without even attempting to set separate arguments for the two charges or clarify what element of the crimes were not met. This practice is troublesome. See Commonwealth v. Gibbs, 981 A.2d 274, 281 (Pa. Super. 2009), appeal denied, order to preserve a challenge to the sufficiency of the evidence on appeal, element or elements upon which the appellant alleges that the evidence was on appeal, filed with the trial court pursuant to Rule 1925(b), and by failing Pa.R.A.P. 2111(a), (b). -4- J-S27043-14 the evidence is so weak that, as a matter of law, no probability of fact can be drawn from the combined circumstances established by the Commonwealth. In re A.V., 48 A.3d 1251, 1252-53 (Pa. Super. 2012) (citation omitted). The Crimes Code defines the crime of involuntary deviate sexual intercourse as follows: A person commits a felony of the first degree when the person engages in deviate sexual intercourse with a complainant . . . who is less than 16 years of age and the person is four or more years older than the complainant and the complainant and person are not married to each other. 18 Pa.C.S.A. § 3123(a)(7). Additionally, with a child, a felony of the first degree, when the person engages in deviate 18 Pa.C.S.A. § 3123(b). In rele Pa.C.S.A. § 3101. As noted above, the trial court found Appellant involuntary deviate sexual intercourse, explaining its finding as follows: The court heard credible testimony from B.R. and his sister that established that T.L. performed oral sex on B.R. At the time of the incident B.R. was less than thirteen years of age, in fact he was twelve. See 18 Pa.C.S.A. § 3123(b). Moreover, B.R. was less than sixteen years of age and T.L. was four or more years older than B.R. 18 Pa.C.S.A. § 3123(a)(7). Additionally, B.R. and T.L. were obviously not married to each other at the time. Id. The [c]ourt therefore believes that its decision, in -5- J-S27043-14 adjudicating T.L. delinquent, was supported by sufficient evidence and T.L. clearly violated the statute on multiple grounds. Trial Court Opinion, 1/7/14, at 4. evidence in the light most favorable to the Commonwealth, and drawing all reasonable inferences therefrom, we conclude there is sufficient evidence to find every element of the crime charged. Next, Appellant argues there was insufficient evidence to support his adjudication for violating 18 Pa.C.S.A. § 3126(a)(7) (indecent assault). - In relevant part, Section 3126 provides: A person is guilty of indecent assault if the person has indecent contact with the complainant, causes the complainant to have indecent contact with the person or intentionally causes the complainant to come into contact with seminal fluid, urine or feces for the purpose of arousing sexual desire in the person or the complainant and: ... (7) the complainant is less than 13 years of age[.] purpose of arousing or gratifying sexual desire, in any pers § 3101. -6- J-S27043-14 twelve years old and T.L. performed oral sex on him to the point of ejaculation. This type of activity clearly falls within the definition of indecent con - analysis and conclusions. We conclude, therefore, there is sufficient evidence to find every element of the crime charged. s assertive or convincing as his own testimony, Appellant fails to recognize questions of credibility are left to the trial court, not to this Court. See, e.g., In re J.M., 89 A.3d 688, 691 (Pa. Super. 2014). Additionally, he fails to recognize a review of the sufficiency of the evidence does not include an assessment of the credibility of testimony; such a claim goes to the weight of the evidence. See, e.g., Commonwealth v. Wilson, 825 A.2d 710, 713 14 (Pa. Super. 2003). Finally, it is well-established the complaining witness is sufficient to convict a defendant of sexual Commonwealth v. Castelhun, 889 A.2d 1228, 1232 (Pa. Super. 2005). Finally, Appellant generally argues the adjudication was against the -7- J-S27043-14 3 Appellant then engages in an extensive review of the testimony Appellant offered at the proceeding, articulated in the most favorable light to Appellant, and eventually asks us to reweigh it in his favor. This is exactly what the Superior Court cannot do. Appellate courts merely review whether the trial court abused its discretion in denying a weight of the evidence challenge.4 Our review shows the trial court did not ____________________________________________ 3 In his 1925(b) statement, Appellant merely alleges the adjudication was Appellant Concise Statement on Matters [sic] Complained of on Appeal, 3/12/13. Given the paucity of claim, not surprisingly, the trial court did not address it. See Commonwealth v. Reeves, 907 A.2d 1, 2 (Pa. Super. inter alia, Commonwealth v. Lemon, 804 A.2d 34, 37 (Pa. Super. 2002) (statements in Rule 1925(b) jury was against the weight of the evidence t adequate review); and Commonwealth v. Seibert, 799 A.2d 54, 62 (Pa. Super. 2002) (Rule 1925(b) statement that 4 In Commonwealth v. Widmer, 744 A.2d 745 (Pa. 2000), the Supreme Court stated the standard as follows: Appellate review of a weight claim is a review of the exercise of discretion, not of the underlying question of whether the verdict is against the weight of the evidence. Because the trial judge has had the opportunity to hear and see the evidence presented, an appellate court will give the gravest consideration to the findings and reasons advanced by the trial judge when reviewing a trial determination that the verdict is against the weight of the evidence. One of the least assailable reasons for granting or denying a new trial is the lower conviction that the verdict was or was not against the weight of the evidence and that a new trial should be granted in the interest of justice. (Footnote Continued Next Page) -8- J-S27043-14 Accordingly, the claim is without merit. Dispositional order affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 7/14/2014 (Footnote Continued) _______________________ Id. at 753 (emphasis in original) (citations omitted). -9-

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